Sue and Settle: Regulating Behind Closed Doors

Friday, May 26, 2017 - 3:30pm

What is Sue and Settle?

"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups.  These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the recent Clean Power Plan.

Under the new Trump administration, EPA Administrator Scott Pruitt stated in March 2017 that the EPA intended to end the practice of sue and settle.  In an interview, Administrator Pruitt said, "one of the things we’ve done internally… is send a memo out to our regions and also to headquarters to say that the days of sue and settle, the days of consent decrees governing this agency where the EPA gets sued by an NGO, a third party, and that third party sets the agenda, sets the timelines on how we do rulemaking, and bypassing rulemaking entirely have ended. (Source)

Recent Notices of Intent to Sue on EPA's Website

4/27/2017CWA, Connecticut Fund for the Environment; Natural Resources Defense Council; Riverkeeper; Waterkeepter Alliance; Raritan Baykeeper; Bronx Council for Environmental Quality; Newtown Creek Alliance; Jamaica Bay Ecowatchers; New York City Water
60-day NOI regarding EPA's failure to approve or disapprove NYS's primary contact recreation criteria
4/26/2017CAA, Chesapeake Climate Action Network, Sierra Club, Environmental Integrity Project and Physicians for Social Responsibility, Chesapeake, Inc.
For failure to timely respond to our petition to object to the proposed Title V Operating Permit for the Fort Smallwood complex
3/20/2017CAA, State of Connecticut
Failure to grant or deny section 126 petition filed by Connecticut regarding Brunner Island Steam Electric Station in York County, Pennsylvania.
3/14/2017CAA, Center for Biological Diversity and the Center for Environmental Health
For failure to make findings of failure to submit for 2008 ozone NAAQS nonattainment areas state implementation plans.
For a full list of EPA's Notices of Intent to Sue, visit

What is New in Sue and Settle?

    April 2017

    See all -- Sue and Settle News Archive

    What are the Economic Implications of our Findings?

    Interactive List of All Sue & Settle Cases

    Also see this alternate table, which lists court cases resolved by agency action in response to legal challenges.

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